In re Formal Advisory Opinion No. 16-2
302 Ga. 736
| Ga. | 2017Background
- Georgia State Bar issued FAO 16-2 (replacing FAO 10-2) to address ethics when an attorney serves both as a child's counsel and as guardian ad litem (GAL) in termination-of-parental-rights proceedings.
- Georgia statutes require appointment of counsel and a GAL for children in TPR cases; counsel may serve as GAL unless a conflict arises between advocacy and the attorney’s "considered opinion" of the child's best interests.
- Rules of Professional Conduct implicated include Rule 1.2 (scope/obedience to client's objectives), Rule 1.14 (clients with diminished capacity), Rule 1.6 (confidentiality), Rule 1.7 (conflicts), Rule 1.16 (withdrawal), and Rule 3.7 (lawyer as witness).
- The core factual scenario: the child expresses wishes that conflict with the attorney/GAL’s determination of the child’s best interests (e.g., child opposes termination but attorney concludes termination is best).
- The advisory opinion limits its analysis to the attorney’s ethical obligations once a conflict has arisen (not whether dual appointment is inherently conflicted).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a dual-role attorney may advocate termination over a child's objection | Dual-role may continue and attorney/GAL may pursue best-interests advocacy even if child objects | Attorney's primary duty is to the client; when child's expressed wishes conflict with attorney's best-interest judgment, the attorney must not continue as GAL | When there is an irreconcilable conflict between the child’s wishes and the attorney’s considered best-interest view, the attorney must withdraw as GAL (and may seek full withdrawal if severe) |
Key Cases Cited
- In re Formal Advisory Opinion No. 10-2, 290 Ga. 363 (clarifying prior ethics analysis addressed by FAO 16-2)
- Scott v. Scott, 276 Ga. 372 (2003) (best interests paramount in custody/termination decisions)
- In re A.P., 291 Ga. App. 690 (2008) (dual representation not inherently conflicted under predecessor statute)
- Kenny A. v. Perdue, 356 F. Supp. 2d 1353 (N.D. Ga. 2005) (discussing constitutional and statutory right to counsel in TPR cases)
- In re Baby Girl Baxter, 17 Ohio St. 3d 229 (Ohio) (holding attorney’s highest duty is zealous representation of client even when appointed GAL)
- In re Georgette, 785 N.E.2d 356 (Mass. 2003) (attorney must represent child's expressed preference if child sufficiently able to decide)
- In re M.R., 638 A.2d 1274 (N.J. 1994) (attorney should be zealous advocate for client wishes unless decisions are patently absurd or unduly harmful)